Love & Other Policy Decisions
By Kate O’Flanagan (Deputy Features Editor)
Love makes the world go round. Why, then, have governments historically spent so much time and legislation dictating how, and who, their citizens love?
The mainstream narrative surrounding the fight for same-sex marriage focuses on the easily digestible ‘love is love’ rallying cry, the fluffy, fairytale understanding of marriage. It’s a nice idea. But one that ignores the reality that the fight for same-sex marriage was not a sure thing, not a ‘safe’ idea for politicians to campaign on. It was a fight borne out of the decimation of a community by an unknown illness, and the necessity of legal protections for couples.
In an era where gay people were experiencing greater visibility than ever before, the 1980s AIDS epidemic highlighted the stark legislative differences between same-sex couples and their heterosexual, married peers. Lacking the legal protections provided by the institution of marriage, gay men were left out of important medical decisions involving their dying partners, barred from visiting them by hospitals and excluded from wills and other legal documentation. These men, often sick themselves, lost the homes and possessions they shared with their partners as the biological family retained all legal rights as next of kin. In the decades prior, same-sex marriage had been regarded as a pipe dream, by some, or an acquiescence to a heteronormative society, by others. Catalysed by the epidemic, attitudes began to shift. By the late 1980s, with over 17,000 AIDS deaths in the United States and no cure, the legalisation of same-sex unions became a central goal of the movement and early strategies were formed. The decades long fight succeeded in changing the tide of public opinion as individual states legalised same-sex marriage throughout the 2000s, starting with Massachusetts in 2004. Ultimately, on 26 June 2015, the United States Supreme Court declared same-sex marriage a fundamental right under the United States Constitution, with all the accompanying rights and responsibilities.
2015 was a landmark year for same-sex marriage recognition with Ireland becoming the first country to legalise same-sex marriage nationwide by popular vote that May. A huge leap for a society so influenced by the Roman Catholic church. Homosexuality remained illegal in the Republic of Ireland until 1993, when Ireland became the last country in Western, Central and Northern Europe to decriminalise homosexuality. While the Campaign for Homosexual Law Reform was founded in the 1970s to fight for the decriminalisation of homosexuality in Ireland, it took the involvement of the European Court of Human Rights to implement this change. In 1988, David Norris argued in front of the court that the Irish laws, dating from the 19th century, rendering homosexuality illegal were incompatible with the European Convention of Human Rights. The court agreed. In particular, it ruled that the criminalisation of homosexuality violated Article 8 of the Convention – the right to privacy.
The right privacy comes up time and time again when it comes to laws infringing on what adults do with other consenting adults, and with their own bodies. The right to privacy underscores laws surrounding same-sex and interracial relationships, access to healthcare and legal protections for transgender people, as well as access to both contraception and abortion. Interestingly, while it is outlined in both the European Convention of Human Rights and the Universal Declaration of Human Rights, the Constitution of Ireland (Bunreacht na hÉireann) does not specifically state a right to privacy. Instead, the courts recognise that the personal rights in the Constitution imply this right.
Interpersonally, the right to privacy extends to family life. Article 41 of the Constitution acknowledges that the “State recognises the Family as the natural primary and fundamental unit group of Society.” But, what definition of family are they operating off of? Constitutionally, the idea of family is “founded” on the institution of marriage, i.e., it is the presence of a married couple with a child that confers the title of family. The census, meanwhile, defines a family as “a couple with or without children, or a one-parent family with one or more children.”
Beyond conflicting ideas of what a family legally constitutes, governments have a long history of forcibly involving themselves in family life and tearing families apart. Marginalised people were the targets of these political attacks. From 1910 to 1970, between 1 in 10 and 1 in 3 Indigenous Australian children were removed from their families and communities by the Australian federal and state government agencies and church missions. Forbidden from speaking their traditional languages or engaging in any form of cultural practice, and forced to adopt new names and identities, these children were forced to assimilate into White society. Rationalised by being done for the ‘protection’ of the child, the reality is that the Australian government stole children from their families on the premise that Indigenous people were racially inferior to Caucasian people.
Built on the same racist beliefs, these practices were also committed by the United States and Canadian governments against their Indigenous peoples. Residential schools in the US were active from the late 17th to early 20th century, while the final Canadian residential school didn’t close until 1997. The tragic legacy of these government initiatives is one of traditional knowledge being lost, and increased instances of substance abuse, alcoholism, post-traumatic stress, and intergenerational trauma which still haunt Indigenous communities today.
Governments around the world continue to pass laws and implement policies that undermine and disrupt the capacity of many people to love and feel loved, with serious long-term impacts on their physical and mental health. 67 countries criminalise same-sex relationships. Interracial marriages were banned in South Africa, under apartheid, until 1985, and it remains illegal or tightly regulated in some Middle Eastern Countries. In the eyes of many governments, not all love is created equal.
As Valentine’s Day approaches, itself banned in multiple countries, perhaps spare a thought for the people who lost love, romantic or familial, as the result of insidious government interference.
